Case Digest: Daniel Frederick Kenneth Clayton (Claimant) v The Army Board of the Defence Council and Another (Defendant) and The Service Complaints Commissioner (Interested Party) [2014] EWHC 1651 (Admin)

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Whether the Panel had erred in law by not directing an oral hearing, failing to determine the claimant's complaint in a reasonable time and not dealing with his entire complaint

Mr Justice Nicol handed down judgment in the case of Daniel Frederick Kenneth Clayton (Claimant) v The Army Board of the Defence Council and Another (Defendant) and The Service Complaints Commissioner (Interested Party), [2014] EWHC 1651 (Admin), on 22nd May 2014.

The application for judicial review was brought by Mr Clayton in respect of the management of a service complaint he lodged while a member of the Army's Royal Corp of Signals ("Royal Signals").

From 1991 the claimant was a linguist in the Royal Signals. A decade later, the linguists in the Corp were amalgamated with the Intelligence Corps. When this change came into effect the claimant was presented with various options. He could (1) remain in the Royal Signals and retrain in a non-intelligence trade or (2) join the Intelligence Corp as an Operator Military Intelligence (Linguist) (OPMI(L)), then transfer to an Operator Military Intelligence role and undergo significant training.

He chose the latter, continuing as an OPMI(L) at the rank of Sergeant. Having been promoted to Staff Sergeant in 2006, he applied for promotion to Warrant Officer Grade 2 (WO2) in 2010 but was unsuccessful. Following this he issued a complaint that his career had been mismanaged. He claimed that he had not received proper advice, such as that transferring to an OPMI would have allowed him to maximise his chances of promotion, nor had the Formal Career Review (FCR) due after his 14th year of service.

He therefore sought a retrospective transfer to the OPMI Career Employment Qualification ("CEQ"), promotion to WO2 and backdating of the latter in line with the last promotion board. A promotion was offered, commencing as of October 2010, on the basis that he withdraw his complaint requesting transfer to OPMI. Issuing a second complaint shortly after, by then his service complaint being at Panel (Level 3), he requested a three-year assignment as a WO2 and OPMI(L) in the United States.

The claimant's application was brought on the following grounds:

He had not received an oral hearing after lodging his first (and second) service complaint.

There had been an unlawful delay in determining this complaint, contravening art 6(1) of the European Convention on Human Rights.

The Army Council had failed to consider his entire complaint.

As to the first, the Justice noted that the Panel did not refuse to hold an oral hearing. The complaint did not concern statutory rights as required for such a hearing to occur, according to R v Army Board of the Defence Council ex parte Anderson, [1993] QB 169. There was nothing to indicate that his case fitted within the common law principles of fairness requiring an oral hearing. His familiarity with the procedure for service complaints and his decision not to apply for such a hearing as permitted by Appendix K in the MOD manual on "Redress of Grievances" were not in his favour. Furthermore, the circumstances of Level 1 and 2 of the complaint process required the Panel to take the Anderson approach and nothing more.

At the end of the discussion of the first ground, the Justice also commented that the Panel had clearly and rationally reached their decision, including their acceptance that he had not had an FCR against usual procedure. Written exchanges were a sufficient means, on the part of the Panel, by which to resolve the dispute as to the FCR (he should have taken the initiative to obtain career advice) and as to training for an OPMI position.

The second ground was answered in the negative. Art 6(1) had not been engaged, as the right to have the complaint considered fairly was not a civil right. English domestic law did not recognise a right to proper career management or promotion to a higher rank, nor was there some specific exception. Moreover, as he was not dismissed, let alone that armed forces personnel cannot claim it, a remedy for unfair dismissal could not be advanced. Fourthly, he had no right to a favourable outcome of the service complaint procedure.

Regarding the third ground, the delay, "[t]he complaint had not simply been forgotten or put in abeyance". While it had progressed more slowly than was ideal, it did not require the speed of response in a matter like a criminal charge.

For the final ground there was no basis for judicial review.

The application was dismissed.

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